DHIRUBHAI KARSHANBHAI CHAU Vs. KARMANBHAI HARJIBHAI PIPALIYA

JUDGEMENT

(1.) This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act") is directed against the award dated 19th September, 2011 passed by the Motor Accident Claims Tribunal, Rajkot (hereinafter referred to as "the Tribunal") below Exhibit-7 in Motor Accident Claim Petition No.1627/2009 to the extent the Tribunal has ordered the opponents No.1 and 2 therein, to pay only Rs.12,500/- with running interest at the rate of 6% per annum from the date of filing of the petition till realization to the applicant and not Rs.25,000/- as contemplated under section 140 of the Act.

(2.) The appellant - original claimant filed a claim petition to recover compensation of Rs.5,00,000/- together with cost and interest on account of the grievous injuries sustained by him in a vehicular accident. The case of the appellant was that on 18th August, 2009, he was riding a Hero Honda motorcycle bearing registration No.GJ-3-BQ-4159 with his wife as a pillion-rider with a moderate speed on the correct side road but a tractor bearing No.GJ-3L-1274 along with trolley No.GJ-3V-319 which was being driven in a rash and negligent manner at an excessive speed dashed the motorcycle as a result whereof the appellant sustained severe bodily injuries. In the said claim case, the appellant filed an application at Exhibit-7 under section 140 of the Act for compensation of Rs.25,000/- on the principle of 'No Fault Liability' during the pendency of the claim petition. The Tribunal took note of the fact that the appellant had deleted the opponent No.4 therein, viz. ICICI, the Insurance Company of the motor cycle, and having regard to the fact that at that juncture, both the vehicles were found to be involved, by the impugned award dated 19th September, 2011, partly allowed the said application by holding that the respondents No.1 and 2 are liable to pay Rs.12,500/- with running interest at the rate of 6% per annum from the date of filing of the petition till realization. Being aggrieved by the order passed by the Tribunal to the extent of deducting 50% from the amount provided under section 140 of the Act, the appellant has filed the present appeal.

(3.) Mr. Tushar Sheth, learned advocate for the appellant, assailed the impugned award by submitting that section 140 of the Act provides for liability to pay compensation in certain cases on the principle of no fault. By virtue of the said provision, where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. Such amount of compensation which is payable under sub-section (1) of section 140 in respect of permanent disablement of any person has been fixed at Rs.25,000/-. It was submitted that under sub-section (3) of section 140 of the Act, in any claim for compensation under sub-section (1), the claimant is not required to plead and establish that such permanent disablement in respect of which the claim has been made is due to any wrongful act, neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person. By virtue of sub-section (4), a claim for compensation under sub-section (1) cannot be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement, the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement. Inviting the attention of the court to the impugned award, it was pointed out that the Tribunal has taken note of the fact that the appellant has deleted the original opponent No.4 - ICICI, that is, the insurance company of the Hero Honda motorcycle and that at this juncture, both the vehicles are found to have been involved in the accident. According to the Tribunal, since the claimant was riding the motorcycle, he being the tortfeasor, must step in the shoes of the owner and, therefore, on the principle of contributory negligence, he is also responsible and hence, he could only claim 50% of the compensation payable from the opponents No.1 and 2 jointly and severally. It was submitted that the reasoning adopted by the Tribunal is contrary to the very statutory scheme which envisages payment of full amount of Rs.25,000/- jointly and severally by those responsible and there is no question of apportionment of any share at the stage of the application under section 140 of the Act. In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of K. Nandakumar v. Managing Director, Thanthal Periyar Transport Corporation, 1996 2 SCC 736, which was rendered in the context of section 92-A of the Motor Vehicles Act, 1939 which is in pari materia with section 140 of the Act of 1988. It was pointed out that the court has held that on a plain reading of section 92-A, particularly the first part of sub-section (4) thereof, there is no basis for holding that a claim thereunder could be made only if the person who has died or suffered permanent disablement has not been negligent. The court, accordingly, held that the appellant therein was entitled to the benefit of the provisions of section 92-A of the Act of 1939 and to recover compensation of the sum quantified therein for permanent disability. Reliance was also placed upon the decision of the Supreme Court in the case of Eshwarappa alias Maheshwarappa and another v. C.S. Gurushanthappa and another, 2010 8 SCC 620, wherein the court has held that on a plain reading of the provisions of section 140 of the Act, it is evident that all that is required to attract the liability under the said section is an accident arising out of the use of a motor vehicle(s) leading to the death or permanent disability of any person. Sub-section (4) provides that the motor accident resulting in the death or permanent disablement might be entirely due to the wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim is made but that too would have no effect either on the right to receive the compensation or the amount of compensation. Reliance was also placed upon the decision of the Supreme Court in the case of Indira Devi & Ors. v. Bagada Ram, 2010 AIR(SCW) 4924, wherein the court made reference to the marginal heading to section 140 of the Act which describes it as based on the principle of no fault and held that the expression 'no fault' suggests that the compensation under section 140 is regardless of any wrongful act, neglect or default of the person in respect of whose death the claim is made. It was submitted that in the light of the principles laid down in the above decisions, the Tribunal was not justified in deducting 50% of the compensation payable under section 140 of the Act on the ground that there was contributory negligence on the part of the appellant. Mr. Sheth further pointed out that the Tribunal after awarding Rs.12,500/-, has ordered that after deducting necessary court fees, 70% of the amount be deposited in FDR in the name of the applicant in any nationalized bank and the remaining 30% amount to be paid in cash to the applicant. It was submitted that such course of action is not permissible under section 140 of the Act, inasmuch as, the same is meant to provide immediate succour to the injured or to the family members of the deceased.